MAKING SURE YOUR ADOPTION FLIES

March 21, 2011 § Leave a comment

Momma, daddy, baby, grandma and grandpa, Aunt JoAnn and Uncle Billy are all assembled expectantly with their digital cameras and mylar baloon bouquets awaiting that happy moment when the judge signs the adoption papers.  Their party is deflated, though, when you glumly emerge from the judge’s office and report that there are still some papers you need to get straight before the judge will affix his signature.  Hopes dashed, disappointments piqued, and disgruntled clients. 

Adoptions are technical.  Not the sort of thing you slap together and slide through with little thought.

Here are some tips to make your adoptions succesful:

  • Plead proper residence jurisdiction.  MCA § 93-17-3 was amended almost four years ago to require six months’ residency, yet we still have lawyers pleading 90 days’ residency. Change your forms.
  • Plead venue.  § 93-17-3 sets out several scenarios for venue.  Select the one that fits your case and track the language of the statute. 
  • There is a UCCJEA-like requirement in § 93-17-3(2) and (3).  Be sure to plead what it requires about proceedings in other states. 
  • Remember that the petition must be accompanied by an affidavit of a doctor or nurse practitioner as to the child’s health, and an affidavit as to the child’s property or lack thereof.
  • § 93-17-3(4) also requires an affidavit of the petitioner(s) of all service fees charged by adoption agencies, as well as “all expenses paid … in the adoption process as of the time of filing the petition.”  I interpret this to include attorney’s fees. 
  • The petition must be sworn, per § 93-17-3(4).
  • § 93-17-5 sets out the requirements as to who must be joined, and how.  Note that § 93-17-5(2) requires that “The child shall join the petition by its next friend.”
  • Since MCA  § 93-13-13 gives any minor over the age of 14 the right to select his or her guardian, you should have the adoptive child execute a joinder, if over the age of 14. 

In this district we require a pre-adoption conference between the judge and the attorney.  The judge will review your petition and affidavits, as well as your proposed judgment, and, if everything is in order, set a date for the final adoption.  If some remedial work is needed, the judge will point out what needs to be done and send you on your way to get it done.  Do not invite your clients to be there on the off-chance that the judge might approve the paperwork.  That would defeat the purpose of the conference, and the judge has not necessarily built the extra time into his calendar to handle both the conference and the adoption.

Several other posts on adoption tips are here, here and here.

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